Com. v. Delaney

Decision Date28 July 1997
Citation425 Mass. 587,682 N.E.2d 611
PartiesCOMMONWEALTH v. Martin F. DELANEY, Jr.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Mark J. Gillis, Boston, for defendant.

Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

On March 9, 1994, a District Court jury found the defendant, Martin F. Delaney, Jr., guilty of five counts of violating a protective order issued pursuant to G.L. c. 209A. 1 The defendant appeals from the convictions, as well as from an order denying his motion for a new trial on various grounds. We transferred the case here on our motion. We affirm.

The following facts are not in dispute. On August 31, 1992, the victim, the defendant's former female companion, obtained an ex parte protective order against the defendant pursuant to G.L. c. 209A, § 4. The order stated that the defendant was to refrain from having any contact with the victim, and specifically restrained the defendant from following the victim and making telephone calls to her. The order also stated that there was to be a hearing on September 11, 1992, to determine whether the order would be extended and that the defendant "may appear, with or without an attorney, to oppose any extension or expansion of this [o]rder. If the defendant does not appear, an extended or expanded [o]rder may remain in effect for up to one year." Service of the temporary order was made by leaving a copy of it at the defendant's last and usual place of abode on September 1, 1992. On September 11, 1992, the defendant did not appear at the hearing; the order was extended for one year to September 10, 1993. The extended order contained the same terms as the temporary order, but there is no evidence that the extended order was ever served on the defendant.

There was evidence from which the jury could have found the following facts. On September 14, 1992, the defendant telephoned the victim and stated, "You got a restraining order against me." The defendant offered to put a clutch in the victim's automobile for free if she would "drop" the restraining order against him. The defendant again telephoned the victim on September 18, 1992, and asked the victim to "give [him] another chance." On September 28, 1992, the defendant forced the victim's automobile off the road and apparently referring to charges in an unrelated matter told her, "You are going to drop the charges or else." The defendant was arrested following this incident. On October 8, 1992, the defendant pulled his vehicle up behind the victim and asked her "if [they] could handle their problems outside of court." Again, the defendant was arrested. Finally, on November 2, the defendant blocked the victim's vehicle as she tried to leave a gasoline station.

On appeal, the defendant argues that, because he never was served with the extended order he was charged with violating, the judge improperly asserted jurisdiction over this case and denied him his due process rights under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The defendant also argues that the Commonwealth improperly joined the charges against him; he alleges error in the jury instructions and claims that the judge's biased treatment of defense counsel deprived him of his right to a fair trial. Finally, the defendant claims that his motion for a new trial was improperly denied because the Commonwealth's closing argument distorted the evidence against him. 2

1. Failure to serve the extended order. The defendant first argues that the failure to serve him with a copy of the extended order deprived the District Court judge of subject matter jurisdiction over his case. Because it is clear that the District Court had subject matter jurisdiction, 3 we treat the defendant's argument as asserting that the statute requires that there be personal service on the defendant before he can be convicted of violating the order. We conclude that personal service of the extended order is not required.

General Laws c. 209A, § 7, requires that a copy of an order issued under §§ 3, 4, or 5 of G.L. c. 209A be served on a defendant. 4 The defendant argues, therefore, that, absent such service, he cannot be convicted of violating an order issued pursuant to G.L. c. 209A. The defendant's argument, however, ignores the fact that the temporary order was served on him at his last and usual place of abode and that the evidence warranted a finding that he had knowledge of the order. This order warned the defendant that, if he failed to appear, "an extended or expanded [o]rder may remain in effect." 5 Section 4 mandated that "the temporary order[ ] shall continue in effect without further order of the court " when the defendant fails to appear (emphasis added). 6 The jury could have found that the defendant had actual and constructive notice of the order and that it continued in effect after the hearing date. In these circumstances the service of the extended order on the defendant was not a prerequisite to his prosecution for violating the terms of the order. This, however, does not end our inquiry. The defendant also argues that prosecuting a defendant for violating an order that has not been served on him violates the defendant's due process rights.

As the defendant points out, "[t]he fundamental requisite of due process is an opportunity to be heard at a meaningful time and in a meaningful manner." Matter of Kenney, 399 Mass. 431, 435, 504 N.E.2d 652 (1987). See Langlitz v. Board of Registration of Chiropractors, 396 Mass. 374, 376, 486 N.E.2d 48 (1985); LaPointe v. License Bd. of Worcester, 389 Mass. 454, 458, 451 N.E.2d 112 (1983). The defendant, however, does not argue that he was deprived of an opportunity to be heard before the judge entered the extended order. 7 Apparently, the defendant's argument is that, because he was not served with a copy of the extended order, he was precluded from moving to have the extended order vacated. G.L. c. 209A, § 3 ("[t]he court may modify its order at any subsequent time upon motion by either party"). The ex parte order informed the defendant that an extended order may be entered against him if he did not appear at the hearing. This information was certainly sufficient to put the defendant on notice, for "[n]otice of facts which would incite a person of reasonable prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would develop." Commonwealth v. Olivo, 369 Mass. 62, 69, 337 N.E.2d 904 (1975), quoting Essex Nat'l Bank v. Hurley, 16 F.2d 427, 428 (1st Cir.1926). Indeed, a party may not "shut his eyes to the means of knowledge which he knows are at hand, and thereby escape the consequences which would flow from the notice if it had actually been received." Commonwealth v. Olivo, supra, quoting NLRB v. Local 3, Bloomingdale Dist. 65, Retail, Wholesale & Dep't Store Union, 216 F.2d 285, 288 (2d Cir.1954). Thus, the defendant, who with reasonable inquiry could have discovered that the temporary order had been extended, cannot be heard to complain that he was deprived of an opportunity to seek to have that extended order vacated.

Due process also requires that a person be given a "reasonable opportunity to know what the order prohibited, so that he might act accordingly." Commonwealth v. Butler, 40 Mass.App.Ct. 906, 907, 661 N.E.2d 666 (1996). See Commonwealth v. Freiberg, 405 Mass. 282, 289, 540 N.E.2d 1289, cert. denied, 493 U.S. 940, 110 S.Ct. 338, 107 L.Ed.2d 327 (1989) (due process requires that individuals receive fair notice of conduct proscribed by statute); Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 522, 499 N.E.2d 812 (1986) (same); Commonwealth v. Williams, 395 Mass. 302, 304, 479 N.E.2d 687 (1985), quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) ("penal statute must 'define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement' "). Clearly, a showing that a defendant was served with a copy of a court order is strong evidence that a defendant had knowledge that certain conduct would not be permitted and could result in a criminal conviction. The failure of such service, however, is not fatal where the Commonwealth can prove beyond a reasonable doubt that the defendant had actual knowledge of the terms of the order. Bongiovi v. LaBeet, 155 A.D.2d 320, 321, 547 N.Y.S.2d 292 (1989) ("[a]t any rate, respondent conceded that she was, in fact, aware of the order of protection and, therefore, personal service need not be demonstrated"). Cf. State v. Delap, 466 N.W.2d 264, 269 (Iowa.Ct.App.1990) (where defendant argues order not sufficiently clear, definite and unambiguous to support contempt adjudication irrelevant because defendant had actual knowledge of "no contact condition" in order and consequences of violating condition). Indeed, as long as a defendant had actual knowledge of the terms of the order, there is no danger that a defendant will be convicted of conduct not known to be violative of a court order. Cf. Lambert v. California, 355 U.S. 225, 229, 78 S.Ct. 240, 243, 2 L.Ed.2d 228 (1957) (where there was "absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it," defendant's conviction violated due process).

We conclude then that the failure to serve a copy of the extended order on the defendant is not a bar to charging him with violating that order. Failure to serve the defendant, however, with a copy of the extended order is, of course, relevant to a determination as to whether the defendant possessed the knowledge required to convict him of violating the order. See...

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